Citation Nr: 1109159
Decision Date: 03/08/11 Archive Date: 03/17/11
DOCKET NO. 06-08 608 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD).
2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady, Attorney at Law
ATTORNEY FOR THE BOARD
John Kitlas, Counsel
INTRODUCTION
The Veteran served on active duty from December 1964 to December 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In pertinent part, the RO determined the Veteran was entitled to a rating of 30 percent for his PTSD for the period from July 25, 2003, to September 1, 2004, and to a 50 percent rating for the period beginning September 1, 2004.
In April 2010, the Board determined that the issue of entitlement to a TDIU was properly before it for appellate consideration pursuant to the holding of Rice v. Shinseki, 22 Vet. App. 447 (2009), as the Veteran had claimed that he stopped working in 2003 or 2004 due to symptoms of his service-connected PTSD, including an inability to get along with coworkers. The Board also determined that the Veteran was entitled to a rating of 50 percent for the PTSD for the period from July 25, 2003, to September 1, 2004, but that a rating in excess of 50 percent was not warranted. Further, the Board remanded the TDIU claim for additional development, which, as detailed below, does not appear to have been fully completed at this time.
The Veteran appealed the Board's April 2010 decision to the United States Court of Appeals for Veterans Claims (Court). By an October 2010 Order, the Court, pursuant to a joint motion, vacated the Board's decision to the extent it denied a rating in excess of 50 percent for the service-connected PTSD, and remanded the case for compliance with the instructions of the joint motion.
For the reasons detailed below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, the Board finds that further development is required in order to comply with the duty to assist and the instructions of the joint motion.
The Board notes that it previously determined in the April 2010 decision that the duty to assist had been satisfied regarding the Veteran's PTSD claim. Among other things, the Board noted that he had been provided with VA medical examinations with respect to the PTSD in March 2004, September 2004, May 2005, and February 2009, and that such examinations were adequate for resolution of this claim. The Board notes that the joint motion which was the basis for the Court's October 2010 Order did not contend otherwise, but, rather, that the Board's decision had inadequate reasons and bases for denying a rating in excess of 50 percent for the PTSD, to include consideration of a TDIU.
The Board notes, however, that it determined in the April 2010 that an examination was necessary to address the TDIU claim. Specifically, the Board remanded the case, in part, to schedule the Veteran for an examination with an appropriate medical professional to obtain an opinion regarding the effect(s) of his service-connected disabilities, including but not limited to PTSD, on his employability. It is noted that he is also service-connected for diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities, and erectile dysfunction.
The record before the Board does not reflect that the examination directed by the April 2010 remand has, as yet, been completed. The Court has held that "a remand by ... the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. We hold further that a remand by ... the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand." Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, the Board must ensure that the April 2010 remand directives regarding the TDIU claim, including the aforementioned VA medical examination, is accomplished before it proceeds with adjudication of this claim. Moreover, as such an examination is expected to include relevant findings as to the symptomatology of the Veteran's PTSD, the Board finds that the issues are inextricably intertwined. Accordingly, the Board must remand this case to ensure the aforementioned development has been completed for a full a fair adjudication of the current appeal.
Inasmuch as the development in this case includes a new VA medical examination, the Veteran is reminded that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.
The Board further finds that any outstanding treatment records for the PTSD that have come into existence since this issue was last adjudicated below should be obtained while this case is in remand status.
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his service-connected PTSD since February 2009. After securing any necessary release, the AMC/RO should obtain those records not on file.
2. After obtaining any additional records to the extent possible, and if an examination has not already been conducted pursuant to the April 2010 Board remand directives, the veteran should be scheduled for an examination with an appropriate medical professional to evaluate the current level of severity of the service-connected PTSD, as well as to obtain an opinion regarding the effect(s) of his service-connected disabilities, including but not limited to PTSD, on his employability. The entire claims folder and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner should be requested to render an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service- connected disabilities, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice- connected disabilities. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of both the lay and medical evidence of record. If an opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why an opinion cannot be offered.
3. Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the AMC/RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998).
4. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. The AMC/RO's decision should reflect consideration of whether TDIU is warranted in this case.
If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and her attorney should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in April 2009, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
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This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).